Citation Nr: 0510014
Decision Date: 04/06/05 Archive Date: 04/15/05
DOCKET NO. 03-35 425 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Hartford, Connecticut
THE ISSUE
Entitlement to service connection for an acquired psychiatric
disorder.
REPRESENTATION
Appellant represented by: Connecticut Department of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
R. Giannecchini, Counsel
INTRODUCTION
The appellant had active military service from April 1966 to
May 1966.
The present matter comes before the Board of Veterans'
Appeals (Board) on appeal of a September 2003 rating
decision. The appellant filed a notice of disagreement (NOD)
later in September 2003, and the RO issued a statement of
case (SOC) in October 2003. The appellant filed a
substantive appeal (via a VA Form 9, Appeal to Board of
Veterans' Appeals) in November 2003. In February 2004, the
appellant testified during a hearing before RO personnel; a
transcript of that hearing is of record.
Additionally, in the above noted November 2003 VA Form 9, the
appellant had requested a videoconference hearing before a
Veterans Law Judge. Thereafter, the appellant submitted an
additional VA Form 9, dated in November 2004, in which he
indicated that he did not desire a Board hearing. The Board
accepts the November 2004 VA Form 9 as a withdrawal of the
appellant's earlier request for a videoconference hearing.
For the reasons expressed below, the claim on appeal is being
remanded to the RO via the Appeals Management Center (AMC),
in Washington, D.C. VA will notify the appellant when
further action, on his part, is required.
REMAND
Unfortunately, the Board's review of the claims file reveals
that further RO action on the claim on appeal is warranted,
even though such action will, regrettably, delay a final
decision.
The appellant contends that as a result of his two weeks of
basic training in the United States Marine Corps he developed
a psychiatric disorder. Evidence pertinent to the claim
consists of the appellant's service medical records to
include a Marine Corps Aptitude Board Report with
neuropsychiatric section; a treatment summary from Patty
Harris, M.S.N., A.P.R.N., C.N.; a treatment summary from
Jacqueline Rugg, M.S.N., A.P.R.N., C.N.; as well as a
February 2004 examination report from a VA Medical Center
(VAMC) West Haven, Connecticut, staff psychiatrist.
In particular, service medical records reflect the
appellant's problems with controlling his nerves during basic
training and his manifesting a trance-like-state
(disassociated episode) as a result. Treatment summaries
from Ms. Harris and Ms. Rugg, note the appellant's report of
depressive symptoms, including insomnia, irritability,
difficulty concentrating, decreased libido, and anhedonia.
The onset of these symptoms was noted as associated with end
stage cardiac disease. The appellant was also noted to be
dealing with stress from work and an impending divorce.
Additionally, Ms. Harris opined that the appellant's
disassociative episode in service might have been the first
sign of bipolar disorder. Both she and Ms. Rugg have
diagnosed the veteran with bipolar II disorder.
The February 2004 VA staff psychiatrist noted in his
examination report that he had not reviewed the appellant's
claims file. He opined that,
In my opinion, it does not seem likely that the
[appellant's] disassociative episode [is]
directly related to a mood disorder. It
certainly does seem that his disassociative
episode led to being discharged from the
Marines, and that being discharged from the
Marines contributed to the [appellant's] mood
disorder because he was so disappointed because
he wanted to be a Marine all of his life. This
was a very traumatic and devastating event that
occurred to him . . . .
Because the VA examiner did not review of the appellant's
claims file, his medical opinion is based on an incomplete
medical history. In this regard, the Board points out that
the probative value of a physician's statement is dependent,
in part, upon the extent to which it reflects "clinical data
or other rationale to support [the] opinion." Bloom v.
West, 12 Vet. App. 185, 187 (1999).
Under these circumstances, the Board finds that the claims
file should be returned to the February 2004 VA examiner for
a supplemental opinion regarding the appellant's claim on
appeal based upon a comprehensive review of the evidence (to
particularly include any evidence added to record) that
provides a complete rationale for any conclusion reached. In
this regard, the examiner should offer an opinion as to
whether any currently diagnosed psychiatric disorder is
related to the appellant's period of service in the Marine
Corps. See 38 U.S.C.A. § 5103A(d) (West 2002). The RO
should arrange for the appellant to undergo an additional
psychiatric examination only if the February 2004 examiner is
unavailable and/or such examination is needed to answer the
question posed.
If an additional psychiatric examination is deemed necessary,
the appellant is herein advised that, in keeping with VA's
duty to assist, the purpose of any examination requested
pursuant to this remand is to obtain information or evidence
that may be dispositive of the appeal. See Connolly v.
Derwinski, 1 Vet. App. 566, 569 (1991). Hence, failure to
report to any such scheduled examination, without good cause,
may result in a denial of the claim on appeal. See 38 C.F.R.
§ 3.655(b) (2004). Examples of good cause include, but are
not limited to, the illness or hospitalization of the
claimant and death of an immediate family member. If the
appellant fails to report to any scheduled examination, the
RO should obtain and associate with the claims file (a)
copy(ies) of the notice(s) of the examination sent to him by
the pertinent VA medical facility.
The Board also points out that, to ensure that all due
process requirements are met, the RO should also give the
appellant another opportunity to present information and/or
evidence pertinent to his claim on appeal. The RO's notice
letter to the appellant should explain that he has a full
one-year period for response. See 38 U.S.C.A § 5103(b)(1)
(West 2002); but see also Veterans Benefits Act of 2003, Pub.
L. No. 108-183, § 701, 117 Stat. 2651, ___ (Dec. 16, 2003)
(to be codified at 38 U.S.C.A. § 5103(b)(3)) (amending the
relevant statute to clarify that VA may make a decision on a
claim before the expiration of the one-year notice period).
The RO should also request that the appellant provide all
pertinent evidence in his possession. After providing the
appropriate notice, the RO should attempt to obtain any
additional evidence for which the appellant provides
sufficient information, and, if needed, authorization,
following the procedures prescribed in 38 C.F.R. § 3.159
(2004).
The actions identified herein are consistent with the duties
imposed by the Veterans Claims Assistance Act of 2000 (VCAA).
See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159
(2004). However, identification of specific actions
requested on remand does not relieve the RO of the
responsibility to ensure full compliance with the VCAA and
its implementing regulations. Hence, in addition to the
actions requested above, the RO should also undertake any
other development and/or notification action deemed warranted
by the VCAA prior to adjudicating the claim on appeal.
Accordingly, this matter is hereby REMANDED to the RO, via
the AMC, for the following action:
1. The RO should send to the appellant
and his representative a letter
requesting that the appellant provide
sufficient information, and if necessary,
signed authorization to enable it to
obtain any additional evidence not
currently of record that pertains to the
appellant's claim on appeal. The RO
should also invite the appellant to
submit all pertinent evidence in his
possession with respect to the claim, and
explain the type of evidence that is his
ultimate responsibility to submit. The
RO's letter should clearly explain to the
appellant that he has a full one-year
period to respond (although VA may decide
the claim within the one-year period).
2. If the appellant responds, the RO
should assist the appellant in obtaining
any additional evidence identified by
following the procedures set forth in 38
C.F.R. § 3.159 (2004). All
records/responses received should be
associated with the claims file. If any
records sought are not obtained, the RO
should notify the appellant and his
representative of the records that were
not obtained, explain the efforts taken
to obtain them, and describe further
action to be taken.
3. After all records and/or responses
received from each contacted entity have
been associated with the claims file, or
the time period for the appellant's
response has expired, the RO should
forward the appellant's claims file for a
supplemental opinion to the West Haven
VAMC staff psychiatrist who examined the
veteran in February 2004.
The VA staff psychiatrist should review
the appellant's claims file, and provide
an opinion as to whether it is at least
as likely as not (i.e. there is at least
a 50 percent probability) that any
currently diagnosed psychiatric disorder
had its onset in, or was permanently
worsened as a result of, the appellant's
active military service. The
psychiatrist must provide the complete
rationale for any conclusions reached-to
include, as appropriate, citation to
specific evidence of record and/or
medical authority-in a printed
(typewritten) report.
The RO should arrange for the appellant
to undergo an additional psychiatric
examination only if the above noted West
Haven VAMC staff psychiatrist is
unavailable or such examination is needed
to answer the question posed above.
4. If the appellant fails to report to
any scheduled examination, the RO should
obtain and associate with the claims file
(a) copy(ies) of the notice(s) of the
examination sent to him by the pertinent
VA medical facility.
5. To help avoid future remand, the RO
must ensure that all requested actions
have been accomplished (to the extent
possible) in compliance with this REMAND.
If any action is not undertaken, or is
taken in a deficient manner, appropriate
corrective action should be undertaken.
See Stegall v. West, 11 Vet. App. 268
(1998).
6. After completing the requested
actions, and any additional notification
and/or development deemed warranted, the
RO should adjudicate the claim on appeal
in light of all pertinent evidence and
legal authority.
7. If the benefit sought on appeal
remains denied, the RO must furnish to
the appellant and his representative an
appropriate Supplemental SOC (SSOC) that
includes clear reasons and bases for the
RO's determinations, and afford them the
appropriate time period for response
before the claims file is returned to the
Board for further appellate
consideration.
The purpose of this REMAND is to afford due process; it is
not the Board's intent to imply whether the benefit requested
should be granted or denied. The appellant need take no
action until otherwise notified, but he may furnish
additional evidence and/or argument during the appropriate
time frame. See Kutscherousky v. West, 12 Vet. App. 369
(1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v.
Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet.
App. 129, 141 (1992).
This REMAND must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans
Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117
Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B,
7112).
_________________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of the appeal. 38 C.F.R.
§ 20.1100(b) (2004).